Texas shooting puts scrutiny on military’s criminal reporting system

As lawmakers search for answers on why the Air Force failed to report the Texas church shooter’s criminal record to the FBI, scrutiny is falling on the military’s legal code.

The Uniform Code of Military Justice (UCMJ) does not treat the crime of domestic violence separately from other assaults. That flaw, critics claim, allows the military to get away with not reporting domestic violence convictions, as it should.

But defense hawks and military justice experts disagree, saying the real issue is that the military’s reporting system is a decentralized mess.

“I don’t think you need to change actual criminal offensives,” said Eric Carpenter, a former Army lawyer and a professor at Florida International University College of Law. “If you imagine just a machine where all the parts are loose, just kind of clanking around … That’s how [the Department of Defense’s] reporting system is like.”

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Authorities have identified Devin Kelley, 26, as the man who opened fire in a Sutherland Springs, Texas, church last weekend, killing 26 people.

In 2012, while in the Air Force, Kelley was convicted in a court-martial of assault after beating and choking his wife and hitting his infant stepson hard enough to fracture his skull.

The conviction should have prevented him from buying a gun in a store, as federal law prohibits people convicted of domestic violence from owning a firearm. But the Air Force never reported it to the FBI’s National Crime Information Center for inclusion in the National Instant Criminal Background Check System (NICS).

The Air Force and the Pentagon have launched an investigation into the Kelley case specifically, and their reporting procedures more broadly, to see whether there have been other lapses.

“The offenses for which the shooter in Texas was court-martialed should have been reported,” Air Force Secretary Heather Wilson told reporters Thursday. “Since Sunday night, the Air Force inspector general has talked to about 100 people involved in this case. We are looking at all of our databases, and if we have problems that we find, we’ll fix them.”

Kelley was convicted under Article 128 of the UCMJ, according to the Air Force’s Monday statement on Kelley.

That article covers assault. But there is no separate article for domestic violence.

Some lawmakers have pointed to that as the reason Kelley may not have been reported to the FBI, saying the lack of a separate offense has allowed the military to not report convictions it’s supposed to.

“It’s quite clear it’s because they don’t classify domestic assault as you do in state court,” Sen. Jeff Flake (R-Ariz.) said this week. “They only have a classification for assault, and that’s a broader classification.”

“I think it’s quite clear that they simply weren’t sending those assault records through to the NICS,” he added.

Flake introduced a bill with Sen. Martin Heinrich (D-N.M.) to close what they described as a loophole. The bill would not amend the UCMJ, but it would clarify that the military needs to report anyone convicted in military court of an offense that would be defined as domestic violence under state law.

“For those who say this is currently the law, we don’t need to change anything or clarify, since the modern recording or the modern record keeping for NICS began in 2007, there has only been one instance, just one instance of military reporting such as reporting a charge like this to the database,” Flake said.

On Friday, Reps. Tulsi Gabbard (D-Hawaii) and Scott Taylor (R-Va.) introduced companion legislation in the House.

“Keeping firearms out of the hands of those convicted of domestic violence is already the law of the land and must be enforced across the board,” Gabbard said in a statement. “The shooting in Sutherland Springs exposed a glaring hole in Department of Defense reporting requirements that made it possible for the shooter to purchase a gun, even though a military court found him guilty of domestic violence while serving in the Air Force.”

Carpenter, the former Army lawyer, said he’s found the legislative proposals unnecessary so far.

Even though the UCMJ does not separate domestic violence from other assaults, military police are supposed to include a special code for domestic violence when they input the results of the trial into records systems, he said.

But coding mistakes are frequent, he added. For example, in 32,600 murder, robbery, sexual assault and assault cases in the Army from 2004 to 2012 that Carpenter reviewed for research on military sexual assault, 1,300 were not coded for domestic violence that should have been.

“The issue is some private behind a computer that makes a mistake,” he said. “It’s just a really sloppy system that’s kind of ripe for errors.”

Senate Armed Services Committee Chairman John McCain (R-Ariz.) said he does not think the UCMJ needs to be updated in the wake of the Texas shooting.

Rather, he reiterated a pledge that his committee will investigate the reporting lapse.

“The problem is not domestic violence in my view,” McCain said. “It’s a problem that we are going to continue to have hearings and address.”

Sen. Lindsey Graham (R-S.C.), a former Air Force lawyer, said he would support updating the UCMJ. But he doesn’t think that was the issue in the Kelley case.

“I don’t think it’s a UCMJ problem,” he said.

“I think it’s just somebody administratively screwed up here because it qualifies as a disqualifying event.”